Category Archives: DRM

lessig: read/write internet under threat

In an important speech to the Open Source Business Conference in San Francisco, Lawrence Lessig warned that decreased regulation of network infrastructure could fundamentally throw off the balance of the “read/write” internet, gearing the medium toward commercial consumption and away from creative production by everyday people. Interestingly, he cites Apple’s iTunes music store, generally praised as the shining example of enlightened digital media commerce, as an example of what a “read-only” internet might look like: a site where you load up your plate and then go off to eat alone.
Lessig is drawing an important connection between the question of regulation and the question of copyright. Initially, copyright was conceived as a way to stimulate creative expression — for the immediate benefit of the author, but for the overall benefit of society. But over the past few decades, copyright has been twisted by powerful interests to mean the protection of media industry business models, which are now treated like a sacred, inviolable trust. Lessig argues that it’s time for a values check — time to return to the original spirit of copyright:

It’s never been the policy of the U.S. government to choose business models, but to protect the authors and artists… I’m sure there is a way for [new models to emerge] that will let artists succeed. I’m not sure we should care if the record companies survive. They care, but I don’t think the government should.

Big media have always lobbied for more control over how people use culture, but until now, it’s largely been through changes to the copyright statutes. The distribution apparatus — record stores, booksellers, movie theaters etc. — was not a concern since it was secure and pretty much by definition “read-only.” But when we’re dealing with digital media, the distribution apparatus becomes a central concern, and that’s because the apparatus is the internet, which at present, no single entity controls.
Which is where the issue of regulation comes in. The cable and phone companies believe that since it’s through their physical infrastructure that the culture flows, that they should be able to control how it flows. They want the right to shape the flow of culture to best fit their ideal architecture of revenue. You can see, then, how if they had it their way, the internet would come to look much more like an on-demand broadcast service than the vibrant two-way medium we have today: simply because it’s easier to make money from read-only than from read/write — from broadcast than from public access.”
Control over culture goes hand in hand with control over bandwidth — one monopoly supporting the other. And unless more moderates like Lessig start lobbying for the public interest, I’m afraid our government will be seduced by this fanatical philosophy of control, which when aired among business-minded people, does have a certain logic: “It’s our content! Our pipes! Why should we be bled dry?” It’s time to remind the media industries that their business models are not synonymous with culture. To remind the phone and cable companies that they are nothing more than utility companies and that they should behave accordingly. And to remind the government who copyright and regulation are really meant to serve: the actual creators — and the public.

can there be a compromise on copyright?

The following is a response to a comment made by Karen Schneider on my Monday post on libraries and DRM. I originally wrote this as just another comment, but as you can see, it’s kind of taken on a life of its own. At any rate, it seemed to make sense to give it its own space, if for no other reason than that it temporarily sidelined something else I was writing for today. It also has a few good quotes that might be of interest. So, Karen said:

I would turn back to you and ask how authors and publishers can continue to be compensated for their work if a library that would buy ten copies of a book could now buy one. I’m not being reactive, just asking the question–as a librarian, and as a writer.

This is a big question, perhaps the biggest since economics will define the parameters of much that is being discussed here. How do we move from an old economy of knowledge based on the trafficking of intellectual commodities to a new economy where value is placed not on individual copies of things that, as a result of new technologies are effortlessly copiable, but rather on access to networks of content and the quality of those networks? The question is brought into particularly stark relief when we talk about libraries, which (correct me if I’m wrong) have always been more concerned with the pure pursuit and dissemination of knowledge than with the economics of publishing.
Consider, as an example, the photocopier — in many ways a predecessor of the world wide web in that it is designed to deconstruct and multiply documents. Photocopiers have been unbundling books in libraries long before there was any such thing as Google Book Search, helping users break through the commodified shell to get at the fruit within.
I know there are some countries in Europe that funnel a share of proceeds from library photocopiers back to the publishers, and this seems to be a reasonably fair compromise. But the role of the photocopier in most libraries of the world is more subversive, gently repudiating, with its low hum, sweeping light, and clackety trays, the idea that there can really be such a thing as intellectual property.
That being said, few would dispute the right of an author to benefit economically from his or her intellectual labor; we just have to ask whether the current system is really serving in the authors’ interest, let alone the public interest. New technologies have released intellectual works from the restraints of tangible property, making them easily accessible, eminently exchangable and never out of print. This should, in principle, elicit a hallelujah from authors, or at least the many who have written works that, while possessed of intrinsic value, have not succeeded in their role as commodities.
But utopian visions of an intellecutal gift economy will ultimately fail to nourish writers who must survive in the here and now of a commercial market. Though peer-to-peer gift economies might turn out in the long run to be financially lucrative, and in unexpected ways, we can’t realistically expect everyone to hold their breath and wait for that to happen. So we find ourselves at a crossroads where we must soon choose as a society either to clamp down (to preserve existing business models), liberalize (to clear the field for new ones), or compromise.
In her essay “Books in Time,” Berkeley historian Carla Hesse gives a wonderful overview of a similar debate over intellectual property that took place in 18th Century France, when liberal-minded philosophes — most notably Condorcet — railed against the state-sanctioned Paris printing monopolies, demanding universal access to knowledge for all humanity. To Condorcet, freedom of the press meant not only freedom from censorship but freedom from commerce, since ideas arise not from men but through men from nature (how can you sell something that is universally owned?). Things finally settled down in France after the revolution and the country (and the West) embarked on a historic compromise that laid the foundations for what Hesse calls “the modern literary system”:

The modern “civilization of the book” that emerged from the democratic revolutions of the eighteenth century was in effect a regulatory compromise among competing social ideals: the notion of the right-bearing and accountable individual author, the value of democratic access to useful knowledge, and faith in free market competition as the most effective mechanism of public exchange.

Barriers to knowledge were lowered. A system of limited intellectual property rights was put in place that incentivized production and elevated the status of writers. And by and large, the world of ideas flourished within a commercial market. But the question remains: can we reach an equivalent compromise today? And if so, what would it look like? Creative Commons has begun to nibble around the edges of the problem, but love it as we may, it does not fundamentally alter the status quo, focusing as it does primarily on giving creators more options within the existing copyright system.
Which is why free software guru Richard Stallman announced in an interview the other day his unqualified opposition to the Creative Commons movement, explaining that while some of its licenses meet the standards of open source, others are overly conservative, rendering the project bunk as a whole. For Stallman, ever the iconoclast, it’s all or nothing.
But returning to our theme of compromise, I’m struck again by this idea of a tax on photocopiers, which suggests a kind of micro-economy where payments are made automatically and seamlessly in proportion to a work’s use. Someone who has done a great dealing of thinking about such a solution (though on a much more ambitious scale than library photocopiers) is Terry Fisher, an intellectual property scholar at Harvard who has written extensively on practicable alternative copyright models for the music and film industries (Ray and I first encountered Fisher’s work when we heard him speak at the Economics of Open Content Symposium at MIT last month).
The following is an excerpt from Fisher’s 2004 book, “Promises to Keep: Technology, Law, and the Future of Entertainment”, that paints a relatively detailed picture of what one alternative copyright scheme might look like. It’s a bit long, and as I mentioned, deals specifically with the recording and movie industries, but it’s worth reading in light of this discussion since it seems it could just as easily apply to electronic books:

….we should consider a fundamental change in approach…. replace major portions of the copyright and encryption-reinforcement models with a variant of….a governmentally administered reward system. In brief, here’s how such a system would work. A creator who wished to collect revenue when his or her song or film was heard or watched would register it with the Copyright Office. With registration would come a unique file name, which would be used to track transmissions of digital copies of the work. The government would raise, through taxes, sufficient money to compensate registrants for making their works available to the public. Using techniques pioneered by American and European performing rights organizations and television rating services, a government agency would estimate the frequency with which each song and film was heard or watched by consumers. Each registrant would then periodically be paid by the agency a share of the tax revenues proportional to the relative popularity of his or her creation. Once this system were in place, we would modify copyright law to eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings. Music and films would thus be readily available, legally, for free.
Painting with a very broad brush…., here would be the advantages of such a system. Consumers would pay less for more entertainment. Artists would be fairly compensated. The set of artists who made their creations available to the world at large–and consequently the range of entertainment products available to consumers–would increase. Musicians would be less dependent on record companies, and filmmakers would be less dependent on studios, for the distribution of their creations. Both consumers and artists would enjoy greater freedom to modify and redistribute audio and video recordings. Although the prices of consumer electronic equipment and broadband access would increase somewhat, demand for them would rise, thus benefiting the suppliers of those goods and services. Finally, society at large would benefit from a sharp reduction in litigation and other transaction costs.

While I’m uncomfortable with the idea of any top-down, governmental solution, this certainly provides food for thought.

DRM and the damage done to libraries

New York Public Library

A recent BBC article draws attention to widespread concerns among UK librarians (concerns I know are shared by librarians and educators on this side of the Atlantic) regarding the potentially disastrous impact of digital rights management on the long-term viability of electronic collections. At present, when downloads represent only a tiny fraction of most libraries’ circulation, DRM is more of a nuisance than a threat. At the New York Public library, for instance, only one “copy” of each downloadable ebook or audio book title can be “checked out” at a time — a frustrating policy that all but cancels out the value of its modest digital collection. But the implications further down the road, when an increasing portion of library holdings will be non-physical, are far more grave.
What these restrictions in effect do is place locks on books, journals and other publications — locks for which there are generally no keys. What happens, for example, when a work passes into the public domain but its code restrictions remain intact? Or when materials must be converted to newer formats but can’t be extracted from their original files? The question we must ask is: how can librarians, now or in the future, be expected to effectively manage, preserve and update their collections in such straightjacketed conditions?
This is another example of how the prevailing copyright fundamentalism threatens to constrict the flow and preservation of knowledge for future generations. I say “fundamentalism” because the current copyright regime in this country is radical and unprecedented in its scope, yet traces its roots back to the initially sound concept of limited intellectual property rights as an incentive to production, which, in turn, stemmed from the Enlightenment idea of an author’s natural rights. What was originally granted (hesitantly) as a temporary, statutory limitation on the public domain has spun out of control into a full-blown culture of intellectual control that chokes the flow of ideas through society — the very thing copyright was supposed to promote in the first place.
If we don’t come to our senses, we seem destined for a new dark age where every utterance must be sanctioned by some rights holder or licensing agent. Free thought isn’t possible, after all, when every thought is taxed. In his “An Answer to the Question: What is Enlightenment?” Kant condemns as criminal any contract that compromises the potential of future generations to advance their knowledge. He’s talking about the church, but this can just as easily be applied to the information monopolists of our times and their new tool, DRM, which, in its insidious way, is a kind of contract (though one that is by definition non-negotiable since enforced by a machine):

But would a society of pastors, perhaps a church assembly or venerable presbytery (as those among the Dutch call themselves), not be justified in binding itself by oath to a certain unalterable symbol in order to secure a constant guardianship over each of its members and through them over the people, and this for all time: I say that this is wholly impossible. Such a contract, whose intention is to preclude forever all further enlightenment of the human race, is absolutely null and void, even if it should be ratified by the supreme power, by parliaments, and by the most solemn peace treaties. One age cannot bind itself, and thus conspire, to place a succeeding one in a condition whereby it would be impossible for the later age to expand its knowledge (particularly where it is so very important), to rid itself of errors, and generally to increase its enlightenment. That would be a crime against human nature, whose essential destiny lies precisely in such progress; subsequent generations are thus completely justified in dismissing such agreements as unauthorized and criminal.

We can only hope that subsequent generations prove more enlightened than those presently in charge.

ESBNs and more thoughts on the end of cyberspace

Anyone who’s ever seen a book has seen ISBNs, or International Standard Book Numbers — that string of ten digits, right above the bar code, that uniquely identifies a given title. Now come ESBNs, or Electronic Standard Book Numbers, which you’d expect would be just like ISBNs, only for electronic books. And you’d be right, but only partly. ESBNs, which just came into existence this year, uniquely identify not only an electronic title, but each individual copy, stream, or download of that title — little tracking devices that publishers can embed in their content. And not just books, but music, video or any other discrete media form — ESBNs are media-agnostic.
“It’s all part of the attempt to impose the restrictions of the physical on the digital, enforcing scarcity where there is none,” David Weinberger rightly observes. On the net, it’s not so much a matter of who has the book, but who is reading the book — who is at the book. It’s not a copy, it’s more like a place. But cyberspace blurs that distinction. As Alex Pang explains, cyberspace is still a place to which we must travel. Going there has become much easier and much faster, but we are still visitors, not natives. We begin and end in the physical world, at a concrete terminal.
When I snap shut my laptop, I disconnect. I am back in the world. And it is that instantaneous moment of travel, that light-speed jump, that has unleashed the reams and decibels of anguished debate over intellectual property in the digital era. A sort of conceptual jetlag. Culture shock. The travel metaphors begin to falter, but the point is that we are talking about things confused during travel from one world to another. Discombobulation.
This jetlag creates a schism in how we treat and consume media. When we’re connected to the net, we’re not concerned with copies we may or may not own. What matters is access to the material. The copy is immaterial. It’s here, there, and everywhere, as the poet said. But when you’re offline, physical possession of copies, digital or otherwise, becomes important again. If you don’t have it in your hand, or a local copy on your desktop then you cannot experience it. It’s as simple as that. ESBNs are a byproduct of this jetlag. They seek to carry the guarantees of the physical world like luggage into the virtual world of cyberspace.
But when that distinction is erased, when connection to the network becomes ubiquitous and constant (as is generally predicted), a pervasive layer over all private and public space, keeping pace with all our movements, then the idea of digital “copies” will be effectively dead. As will the idea of cyberspace. The virtual world and the actual world will be one.
For publishers and IP lawyers, this will simplify matters greatly. Take, for example, webmail. For the past few years, I have relied exclusively on webmail with no local client on my machine. This means that when I’m offline, I have no mail (unless I go to the trouble of making copies of individual messages or printouts). As a consequence, I’ve stopped thinking of my correspondence in terms of copies. I think of it in terms of being there, of being “on my email” — or not. Soon that will be the way I think of most, if not all, digital media — in terms of access and services, not copies.
But in terms of perception, the end of cyberspace is not so simple. When the last actual-to-virtual transport service officially shuts down — when the line between worlds is completely erased — we will still be left, as human beings, with a desire to travel to places beyond our immediate perception. As Sol Gaitan describes it in a brilliant comment to yesterday’s “end of cyberspace” post:

In the West, the desire to blur the line, the need to access the “other side,” took artists to try opium, absinth, kef, and peyote. The symbolists crossed the line and brought back dada, surrealism, and other manifestations of worlds that until then had been held at bay but that were all there. The virtual is part of the actual, “we, or objects acting on our behalf are online all the time.” Never though of that in such terms, but it’s true, and very exciting. It potentially enriches my reality. As with a book, contents become alive through the reader/user, otherwise the book is a dead, or dormant, object. So, my e-mail, the blogs I read, the Web, are online all the time, but it’s through me that they become concrete, a perceived reality. Yes, we read differently because texts grow, move, and evolve, while we are away and “the object” is closed. But, we still need to read them. Esse rerum est percipi.

howl page one.jpg Just the other night I saw a fantastic performance of Allen Ginsberg’s Howl that took the poem — which I’d always found alluring but ultimately remote on the page — and, through the conjury of five actors, made it concrete, a perceived reality. I dug Ginsburg’s words. I downloaded them, as if across time. I was in cyberspace, but with sweat and pheremones. The Beats, too, sought sublimity — transport to a virtual world. So, too, did the cyberpunks in the net’s early days. So, too, did early Christian monastics, an analogy that Pang draws:

…cyberspace expresses a desire to transcend the world; Web 2.0 is about engaging with it. The early inhabitants of cyberspace were like the early Church monastics, who sought to serve God by going into the desert and escaping the temptations and distractions of the world and the flesh. The vision of Web 2.0, in contrast, is more Franciscan: one of engagement with and improvement of the world, not escape from it.

The end of cyberspace may mean the fusion of real and virtual worlds, another layer of a massively mediated existence. And this raises many questions about what is real and how, or if, that matters. But the end of cyberspace, despite all the sweeping gospel of Web 2.0, continuous computing, urban computing etc., also signals the beginning of something terribly mundane. Networks of fiber and digits are still human networks, prone to corruption and virtue alike. A virtual environment is still a natural environment. The extraordinary, in time, becomes ordinary. And undoubtedly we will still search for lines to cross.

the creeping (digital) death of fair use

Meant to post about this last week but it got lost in the shuffle… In case anyone missed it, Tarleton Gillespie of Cornell has published a good piece in Inside Higher Ed about how sneaky settings in course management software are effectively eating away at fair use rights in the academy. Public debate tends to focus on the music and movie industries and the ever more fiendish anti-piracy restrictions they build into their products (the latest being the horrendous “analog hole”). But a similar thing is going on in education and it is decidely under-discussed.
Gillespie draws our attention to the “Copyright Permissions Building Block,” a new add-on for the Blackboard course management platform that automatically obtains copyright clearances for any materials a teacher puts into the system. It’s billed as a time-saver, a friendly chauffeur to guide you through the confounding back alleys of copyright.
But is it necessary? Gillespie, for one, is concerned that this streamlining mechanism encourages permission-seeking that isn’t really required, that teachers should just invoke fair use. To be sure, a good many instructors never bother with permissions anyway, but if they stop to think about it, they probably feel that they are doing something wrong. Blackboard, by sneakily making permissions-seeking the default, plays to this misplaced guilt, lulling teachers away from awareness of their essential rights. It’s a disturbing trend, since a right not sufficiently excercised is likely to wither away.
Fair use is what oxygenates the bloodstream of education, allowing ideas to be ideas, not commodities. Universities, and their primary fair use organs, libraries, shouldn’t be subjected to the same extortionist policies of the mainstream copyright regime, which, like some corrupt local construction authority, requires dozens of permits to set up a simple grocery store. Fair use was written explicitly into law in 1976 to guarantee protection. But the market tends to find a way, and code is its latest, and most insidious, weapon.
Amazingly, few academics are speaking out. John Holbo, writing on The Valve, wonders:

Why aren’t academics – in the humanities in particular – more exercised by recent developments in copyright law? Specifically, why aren’t they outraged by the prospect of indefinite copyright extension?…
…It seems to me odd, not because overextended copyright is the most pressing issue in 2005 but because it seems like a social/cultural/political/economic issue that recommends itself as well suited to be taken up by academics – starting with the fact that it is right here on their professional doorstep…

Most obviously on the doorstep is Google, currently mired in legal unpleasantness for its book-scanning ambitions and the controversial interpretation of fair use that undergirds them. Why aren’t the universities making a clearer statement about this? In defense? In concern? Soon, when search engines move in earnest into video and sound, the shit will really hit the fan. The academy should be preparing for this, staking out ground for the healthy development of multimedia scholarship and literature that necessitates quotation from other “texts” such as film, television and music, and for which these searchable archives will be an essential resource.
Fair use seems to be shrinking at just the moment it should be expanding, yet few are speaking out.

fingerprinting text in the age of cut-and-paste

Lexis Nexis has installed new software for detecting plagiarism. As described on their site:

LexisNexis CopyGuard uses pattern-matching technology to identify suspect passages in submitted documents. An easy-to-read report underlines and color codes questionable sentences, with links to the original sources.

This could be an important tool for assuring integrity not only in professional journalism, but also in the emerging class of amateur reporters. But apply it to blogs and CopyGuard might overload and shut down. Bloggers are constantly recycling text, often without clear attribution, or obvious demarcation between quote and original commentary. The bounds of plagiarism seem a bit less clear when you consider that cutting and pasting is one of the main ways we converse online.
(NY Times has story)

NYPL ebook collection leaves much to be desired

I just checked out two titles from the New York Public Library’s ebook catalog, only to learn, to my great astonishment, that those books are now effectively “checked out,” and cannot be downloaded again by anyone else until my copies time out.
It boggles the mind that NYPL would go to the trouble of establishing a collection of electronic titles, only to wipe out every advantage offered by digital texts. In fact, they do more than simply keep the ebooks on the level of print, they limit them further than that, since there are generally multiple copies of most print titles in the NYPL system.
The people responsible for this catalog have either entirely failed to grasp the concept of infinitely accessible, screen-based books, or they grasp it all too well and are trying to stunt it at its inception, perhaps out of fear of extinction of the print librarian. More likely, they are under heavy pressure by a paranoid copyright regime. Whatever the reason, the new ebook catalog shows a total lack of imagination and offers nearly no tangible benefit for the reader.
Beyond that, the books themselves are poorly designed and unpleasant to read. My downloaded copy of Conrad’s Heart of Darkness (which, by the way, I found in the “Romance” section) evidences no more than ten minutes worth of design work, and appears to be simply a cut-and-pasted ASCII file from Gutenberg with a garish graphic slapped on the cover. My copy of Chain of Command by Seymour Hersh was a bit more respectable – more or less a pdf facsimile of the print edition.
On an amusing note, the “literary criticism” section is populated almost entirely by Cliff’s Notes.

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